IBEW Local 103 (Encore Boston Harbor) (01-CB-241548)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE:

January 22, 2020

TO:

Paul J. Murphy, Acting Regional Director

Region 1

FROM:

Richard A. Bock, Associate General Counsel

Division of Advice

SUBJECT: Wynn MA, LLC d/b/a Encore Boston Harbor

Case 01-CA-241556

IBEW Local 103 (Wynn MA, LLC d/b/a Encore

Boston Harbor)

Case 01-CB-241548

518-4040-1700-0000

The Region submitted these cases for advice as to whether the Employer, which

operates a casino-hotel resort, violated Section 8(a)(2) and (1) by voluntarily

recognizing IBEW Local 103 as the bargaining representative of a unit comprised at

least primarily of maintenance employees approximately two months before the resort

opened to the general public, and whether Local 103 violated Section 8(b)(1)(A) by

accepting such recognition. We conclude the Employer and Local 103 violated the Act

because the recognition was unlawfully premature in that the Employer was not yet

engaged in normal business operations at the time of recognition. Accordingly, the

Region should issue complaint, absent settlement.

FACTS

Wynn MA, LLC d/b/a Encore Boston Harbor (the “Employer”) operates a

casino-hotel resort in Everett, Massachusetts, consisting of a casino, a twenty-seven-

floor hotel tower, five restaurants, conference facilities, and utility areas (the

“Resort”). Construction of the Resort started around 2016 and was completed on a

staggered schedule through June 2019.

The first areas of the Resort were turned over to the Employer’s control by

contractor Suffolk Construction (“Suffolk”) in the fall of 2018. Around that same time,

the Employer began hiring facilities maintenance employees at the Resort.

facilities, and utility areas (the

“Resort”). Construction of the Resort started around 2016 and was completed on a

staggered schedule through June 2019.

The first areas of the Resort were turned over to the Employer’s control by

contractor Suffolk Construction (“Suffolk”) in the fall of 2018. Around that same time,

the Employer began hiring facilities maintenance employees at the Resort.

Cases 01-CA-241556 & 01-CB-241548

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On April 25, 2019,1 the Employer recognized IBEW Local 103 (“Local 103”) as

the bargaining representative of a unit of employees at least primarily engaged in

facilities maintenance. Local 103 demonstrated majority support by card check, and

the parties agreed to the following bargaining unit description:

All regular full-time and regular part-time employees and all

lead positions in the following maintenance classifications:

lead BAS [building automated systems] control technician,

lead HVAC technician, HVAC technician, lead HVAC

AHU/FCU technician, HVAC AHU/FCU technician, lead

electrician, lead plant & Sr watch [senior watch], lead

plumber, electricians, I&C [instrumentation and controls]

Technician, plumber, HVAC technicians, refrigeration

technician, BAS controls tech, kitchen technician, plant &

senior watch, lead painter, lead carpenter, general services

technician, sign shop (excluding graphic designer), millwork

specialist, locksmith, lead stone & tile, general carpenter,

frames & drywall, upholstery, carpet installer, wall coverer,

painter, stone, mason, tiler, door repair, dispatcher – FCC

[Fire Command Center] & maintenance, slot technicians,

entertainment production services technicians, sound/audio

& video technicians, lighting technicians, lighting control

technicians.

At the time of recognition, 80 employees covering 27 job classifications had been hired

into the bargaining unit, and those employees worked day shifts at the Resort

n, tiler, door repair, dispatcher – FCC

[Fire Command Center] & maintenance, slot technicians,

entertainment production services technicians, sound/audio

& video technicians, lighting technicians, lighting control

technicians.

At the time of recognition, 80 employees covering 27 job classifications had been hired

into the bargaining unit, and those employees worked day shifts at the Resort.

By that date, Suffolk had turned over to the Employer all hotel floors and

corridors; eight of ten gaming areas; two of five restaurants; mechanical areas; many

administrative areas and ancillary hospitality areas; maintenance employees’ trade

shops; and the Central Utility Plant, which controls heating, cooling, and ventilation

systems. Still under Suffolk’s control were the remaining gaming areas and

restaurants, various meeting rooms, the grand ballroom, several retail facilities,

certain convention facilities, elevators, vehicle dispatch and parking offices, and

exterior areas. Although, after the Resort’s opening, bargaining unit employees would

be fully responsible for maintenance of these areas, during construction employees

were generally not allowed to touch anything in them, and, to the extent they were

working in these areas at all, their work was limited to tasks such as training,

familiarizing themselves with the premises, mapping out the HVAC system,

inspecting Suffolk’s work, and creating “punch lists” of items for Suffolk to correct.

1 All subsequent dates are in 2019 unless otherwise indicated.

erally not allowed to touch anything in them, and, to the extent they were

working in these areas at all, their work was limited to tasks such as training,

familiarizing themselves with the premises, mapping out the HVAC system,

inspecting Suffolk’s work, and creating “punch lists” of items for Suffolk to correct.

1 All subsequent dates are in 2019 unless otherwise indicated.

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For those areas of the Resort that Suffolk had turned over to the Employer,

employees’ work was more hands-on, as discussed in the Action section below.

Between June 3 and 23, the Employer for the first time invited certain

employees and special guests to overnight, dine, and game at the Resort. During this

invitation-only period, Suffolk turned over to the Employer any areas that had

remained under its control.

On June 23, the Resort officially opened to the general public. By that date, the

bargaining unit had grown to 125 employees in 37 job classifications,2 and most unit

classifications had been switched from day shifts to 24/7 shift coverage.

ACTION

We conclude the Employer violated Section 8(a)(2) and (1) by prematurely

recognizing Local 103 as the unit employees’ bargaining representative, and Local 103

violated Section 8(b)(1)(A) by accepting such recognition. Accordingly, the Region

should issue complaint, absent settlement.

Voluntary recognition is lawful only if, at the time of recognition, the employer

employs a substantial and representative complement of its projected workforce and

is engaged in normal business operations.3

We conclude that, at the time of recognition, the Employer employed a

substantial and representative complement of its projected workforce in the

bargaining unit

, absent settlement.

Voluntary recognition is lawful only if, at the time of recognition, the employer

employs a substantial and representative complement of its projected workforce and

is engaged in normal business operations.3

We conclude that, at the time of recognition, the Employer employed a

substantial and representative complement of its projected workforce in the

bargaining unit. The Board will generally find a substantial and representative

complement if the employer has hired at least 30 percent of its employees in 50

percent of job classifications.4 Here, at the time of recognition, the bargaining unit

exceeded both thresholds by a substantial margin: 80 out of 125 positions (64%) had

been filled, and those employees covered 27 of 37 classifications (73%). Accordingly,

the Employer had hired a substantial and representative complement under current

Board law.

2 The number of employees at the time of opening exceeded the Employer’s earlier

projection that the full complement of employees would comprise 109. There is no

evidence of further significant expansion of the bargaining unit.

3 Hilton Inn Albany, 270 NLRB 1364, 1365 (1984).

4 See, e.g., id. at 1365 & n.10 (citing General Extrusion Co., 121 NLRB 1165 (1958));

MV Public Transportation, 356 NLRB at 877-78.

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However, we further conclude that the Employer’s recognition of Local 103 was

nevertheless premature because the Employer was not yet engaged in normal

business operations

NLRB 1364, 1365 (1984).

4 See, e.g., id. at 1365 & n.10 (citing General Extrusion Co., 121 NLRB 1165 (1958));

MV Public Transportation, 356 NLRB at 877-78.

Cases 01-CA-241556 & 01-CB-241548

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However, we further conclude that the Employer’s recognition of Local 103 was

nevertheless premature because the Employer was not yet engaged in normal

business operations. This second prong of the test “recognizes the fact that employees

are better able to register their electoral choice when they are actually engaged in the

work for which representation is sought.”5 To determine whether employers in service

industries are engaged in normal business operations, the Board has considered

factors including whether employer facilities are open and serving customers;

whether the work conducted by bargaining unit employees at the time of recognition

is the same as the their eventual everyday work; whether employees’ working

conditions at the time of recognition are the same as their eventual everyday

conditions; and, finally, the staffing levels at the time of recognition.6

Considering these factors in Elmhurst Care Center, the Board found a nursing

home was not yet engaged in normal business operations when, approximately one

month before the first patients would be admitted, the employer recognized the union

as the bargaining representative of a unit of licensed practical nurses (“LPNs”),

certified nursing assistants (“CNAs”), housekeepers, and dietary technicians.7 At that

time, the unit employees were working relatively few hours and their responsibilities

were limited to training and other tasks in preparation for receiving patients.8 In

addition, once the employer began admitting patients, it hired many more LPNs and

CNAs to provide nursing care to patients, which was the employer’s “normal business

operation,” while the number of dietary and housekeeping employees remained

relatively steady.9 The Board observed, “Normal operations for a nursing home

ordinarily begi

and other tasks in preparation for receiving patients.8 In

addition, once the employer began admitting patients, it hired many more LPNs and

CNAs to provide nursing care to patients, which was the employer’s “normal business

operation,” while the number of dietary and housekeeping employees remained

relatively steady.9 The Board observed, “Normal operations for a nursing home

ordinarily begin when patients are admitted and the demands attendant thereto are

felt,”10 and found, based on the foregoing facts, that the employer was not engaged in

5 Elmhurst Care Center, 345 NLRB at 1178.

6 See, e.g., id. at 1177; Hilton Inn Albany, 270 NLRB at 1366 (hotel was not engaged

in normal business operations when it was not yet open, work performed was limited

to training of cooks and kitchen personnel and performance of maids’ duties, and the

size of the employee complement actually working and number of hours worked

increased rapidly immediately following recognition).

7 345 NLRB at 1176-77, 1183.

8 Id. at 1177.

9 Id. at 1177 & n.10, 1178-79.

10 Id. at 1178.

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normal business operations at the time of recognition.11 The Board noted that, in

light of subsequent hiring, waiting until the facility opened to grant recognition would

have increased the number of unit employees participating in the decision to select

the union while having minimal impact on those employed earlier and also “would

have increased the likelihood that the employees would be aware of what their normal

work activity and everyday terms and conditions of employment would consist of,

before making the decision regarding representation.”12

In contrast, in Herman Brothers, Inc.,13 the Board found an employer whose

employee-drivers delivered liquified gas products to be engaged in normal business

operations even before the facility from which the drivers were to eventually pick up

the gas products became operative. The employer had contracted with M

yment would consist of,

before making the decision regarding representation.”12

In contrast, in Herman Brothers, Inc.,13 the Board found an employer whose

employee-drivers delivered liquified gas products to be engaged in normal business

operations even before the facility from which the drivers were to eventually pick up

the gas products became operative. The employer had contracted with M. G. Burdett

Enterprises to deliver gas products from a new facility owned by Burdett, but the

facility was not scheduled to “come on line” until after the date of recognition.14

However, by the time of recognition, the employer’s drivers had begun hauling gas

products purchased by Burdett from other companies to service Burdett’s customers

and to charge up Burdett’s new facility.15 Based on this work, the Board concluded

that the employer was engaged in normal business operations at the time of

recognition.16

Applying the foregoing precedent here, we conclude that the Employer was not

engaged in normal business operations when it recognized Local 103 on April 25.

Initially, at that time, the Employer was not yet serving any customers at the Resort.

It would be more than a month before the Resort would host its first guests on June 3

and about two months before the Resort opened to the general public on June 23.

Moreover, at the time of recognition, unit employees were generally engaged in

preparatory work that differed from their everyday duties following the opening. The

starkest differences relate to areas of the Resort that were still under construction at

the time of recognition, such as three of five restaurants, the grand ballroom, and

certain convention facilities. Although by the opening, bargaining unit employees

11 Id. at 1179.

12 Id. at 1179 & n.16.

13 264 NLRB 439, 439, 441 (1982).

14 Id. at 439.

15 Id.

16 See id. at 440-41.

e

starkest differences relate to areas of the Resort that were still under construction at

the time of recognition, such as three of five restaurants, the grand ballroom, and

certain convention facilities. Although by the opening, bargaining unit employees

11 Id. at 1179.

12 Id. at 1179 & n.16.

13 264 NLRB 439, 439, 441 (1982).

14 Id. at 439.

15 Id.

16 See id. at 440-41.

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Three further facts indicate more global changes in unit employees’ work pre-

and post-opening. First is the dramatic change in the number of work orders handled

through the Fire Command Center (“FCC”), which processes all maintenance calls

and is staffed by dispatchers in the bargaining unit. Whereas in the seven-month

period preceding the opening, the FCC processed 2,782 work orders, it processed

4,641 work orders in roughly the first seven weeks post-opening.19 Second, although

currently there is no evidence regarding unit employees’ interactions with guests,

there is evidence that an HVAC technician received training on such interactions,

indicating that the Employer anticipated the interactions would occur. Third, most

bargaining unit employees switched from day shifts at the time of recognition to 24/7

shift coverage by the time of the opening.20 Not only was this a significant change in

working conditions in its own right, but it also indicates increased responsibilities on

the part of the bargaining unit for handling the Resort’s maintenance needs after the

opening occurred.

The above evidence demonstrates significant work differences between the pre-

and post-opening periods for the brunt of bargaining unit employees. The fact that

some employees did not experience specific changes to their responsibilities21 upon

which is unclear

lities on

the part of the bargaining unit for handling the Resort’s maintenance needs after the

opening occurred.

The above evidence demonstrates significant work differences between the pre-

and post-opening periods for the brunt of bargaining unit employees. The fact that

some employees did not experience specific changes to their responsibilities21 upon

which is unclear. Such tasks include, inter alia, electricians and plumbers inspecting,

cleaning, and testing equipment; multiple classifications of employees, such as

general maintenance technicians, slot technicians, carpenters, and stone and tile

workers, conducting assembly, testing, and finish work; and various employee

classifications installing Employer-furnished equipment and doing painting and other

work on the hotel floors.

19 Unless the Employer dramatically increased the number of FCC dispatchers after

opening the Resort—a fact not in the record—the increase in work orders also

indicates a change in the work of the dispatchers themselves.

20 Relatedly, there is Employer-provided evidence that employees were engaged in

substantial overtime work prior to the opening, but it is unclear whether overtime

work dropped off significantly after the opening as a general matter. To the extent the

evidence at trial establishes a difference in overtime work, the Region should rely on

that fact as well.

21 This includes a carpenter whose duties did not change, a lead stone & tile employee

who may have experienced changes, since the evidence established only that many of

tasks were the same before and after the opening, as well as a lead HVAC

technician who described similarity between

pre-and post-opening work, in

contrast with the experience of the above-mentioned HVAC technician. In addition,

(b) (6), (b) (7)

ties did not change, a lead stone & tile employee

who may have experienced changes, since the evidence established only that many of

tasks were the same before and after the opening, as well as a lead HVAC

technician who described similarity between

pre-and post-opening work, in

contrast with the experience of the above-mentioned HVAC technician. In addition,

(b) (6), (b) (7)

(b) (6), (b) (

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the Resort opening does not alter our conclusion that, overall, the work conducted by

bargaining unit employees at the time of recognition was not the same as the work

they performed post-opening.

Nor are we persuaded that unit employees who handled maintenance at

peripheral properties (an office building and multiple warehouses) were unaffected by

the Resort’s opening. Even assuming that work at those properties did not change,

the record includes no evidence to support that that work was a major part of any unit

employees’ responsibilities.

Overall, between the time of recognition and the Resort’s opening, at which

point it began serving members of the general public, the work of the bargaining unit

changed as employees transitioned from preparatory activities to a 24/7 maintenance

operation responsive to guest complaints and other demands of everyday facility

usage. This transition, together with the fact that the Employer had yet to welcome

any guests to the Resort at the time of recognition, establishes that, like the nursing

home in Elmhurst Care Center,22 the Employer was not engaged in normal business

operations at the time of recognition

ies to a 24/7 maintenance

operation responsive to guest complaints and other demands of everyday facility

usage. This transition, together with the fact that the Employer had yet to welcome

any guests to the Resort at the time of recognition, establishes that, like the nursing

home in Elmhurst Care Center,22 the Employer was not engaged in normal business

operations at the time of recognition. Moreover, as in Elmhurst, waiting to grant

recognition here would have increased the number of unit employees participating in

the decision to select a union while having minimal impact on those employed earlier,

and also would have increased the likelihood that the employees would be aware of

their normal work activity and everyday terms and conditions of employment before

making a decision regarding representation.23 By granting recognition when it did,

the Employer necessarily disenfranchised employees whose hire was not necessary

until closer to when the Resort opened to the public.

The Charged Parties attempt to distinguish Elmhurst largely on the basis that

the Elmhurst nursing home’s bargaining unit conducted patient-care work while the

Employer’s bargaining unit is limited to maintenance employees whose work is

unaffected by the presence of guests. Assuming arguendo that unit employees’ work is

indeed unaffected by guests notwithstanding contrary evidence,24 that would not

the Employer’s Vice President of Facilities states that the work of sign shop and BAS

employees did not change.

22 345 NLRB at 1176-77.

23 Id. at 1179 & n.16.

24 For example, only after the time of recognition did the Employer hire convention

services A/V technicians. Although the record currently includes little information

about such employees, their job title itself suggests their work entails interaction with

ties states that the work of sign shop and BAS

employees did not change.

22 345 NLRB at 1176-77.

23 Id. at 1179 & n.16.

24 For example, only after the time of recognition did the Employer hire convention

services A/V technicians. Although the record currently includes little information

about such employees, their job title itself suggests their work entails interaction with

Cases 01-CA-241556 & 01-CB-241548

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overcome the fact that their work and working conditions changed overall by the time

the Resort was open to the public. The limited hours worked by Elmhurst employees

prior to the opening of the nursing home is also not a meaningful distinction,

particularly since here most employees also experienced a significant change in hours:

the transition from day shifts to 24/7 shift coverage. Thus, as in Elmhurst, it was

appropriate to at the very least delay voluntary recognition until guests were

admitted “and the demands attendant thereto [were] felt.”25

The Charged Parties misplace reliance on Klein’s Golden Manor.26 As the

Board has subsequently recognized in Elmhurst, the Klein’s Board did not address the

normal-business-operations prong because the complaint in that case failed to do the

same.27

Ultimately, the unit employees’ preparatory maintenance work “may [have

been] essential to the operation of [the Employer’s] business, but it is not the business

itself.”28 Accordingly, the Region should issue complaint, absent settlement, alleging

the Employer violated Section 8(a)(2) and (1) by prematurely recognizing Local 103 as

the unit employees’ bargaining representative, and Local 103 violated Section

8(b)(1)(A) by accepting such premature recognition.

/s/

R.A.B.

ADV.01-CA-241556.Response.EncoreBostonHarbor.

conference patrons

hould issue complaint, absent settlement, alleging

the Employer violated Section 8(a)(2) and (1) by prematurely recognizing Local 103 as

the unit employees’ bargaining representative, and Local 103 violated Section

8(b)(1)(A) by accepting such premature recognition.

/s/

R.A.B.

ADV.01-CA-241556.Response.EncoreBostonHarbor.

conference patrons. In addition, as noted above, there is evidence that even

classifications like HVAC technicians received training on guest interactions,

indicating that this would be part of their work.

25 345 NLRB at 1178.

26 214 NLRB 807, 815-16 (1974).

27 See Elmhurst Care Center, 345 NLRB at 1178 & n.12.

28 Id. at 1178.

(b) (6), (b) (7)(